Grounds for Divorce in Scotland
Almost every guide to Scottish divorce you will find says there are five grounds. There are two. The confusion is not trivial, because the thing most people call a ground is not a ground at all, and one of the five is not law and has not been law since 2006.
This page sets out what the Divorce (Scotland) Act 1976 actually says, fact by fact, with the parts that decide real cases: how the separation period is counted, what happens if you try again and it does not work, and why the fact you rely on decides which form you use and what the divorce costs.
Two Grounds
Section 1(1) of the Divorce (Scotland) Act 1976 gives the court two, and only two, bases on which it may grant a divorce.
The first is that the marriage has broken down irretrievably. The second is that an interim gender recognition certificate has been issued to either party after the date of the marriage. The second is rare. The first covers almost everything.
Four Facts
Irretrievable breakdown is not proved by asserting it. Section 1(2) sets out four facts, and the court must be satisfied that one of them applies. The fact is the evidence; the ground is what the court grants the divorce on. Keeping the two apart matters, because the fact you choose decides your procedure, your form and your cost.
| Fact | Section | Waiting period | Consent of the other spouse? | Simplified procedure? |
|---|---|---|---|---|
| Adultery | 1(2)(a) | None | Not required | No |
| Behaviour | 1(2)(b) | None | Not required | No |
| One year apart, with consent | 1(2)(d) | One year | Required | Yes, Form SPA |
| Two years apart, without consent | 1(2)(e) | Two years | Not required | Yes, Form SPB |
There is no paragraph (c). There used to be, and it is the reason so much published guidance is wrong.
Adultery
Adultery under section 1(2)(a) means the defender has committed adultery since the date of the marriage. There is no waiting period and no need for the other spouse to agree to anything.
What adultery means is narrower than people assume. In Scots law adultery is voluntary sexual intercourse between a man and a woman, one of whom is married to somebody else. The explanatory notes to section 5 of the Marriage and Civil Partnership (Scotland) Act 2014 confirm the common law meaning as sexual intercourse between a man and a woman, and section 1(3A) of the 1976 Act was added to put beyond doubt that the meaning is identical in a same-sex marriage. The consequence is stark and rarely spelled out: an affair between two people of the same sex is not adultery in Scotland, whoever is married to whom, and it cannot be founded on as adultery. It may amount to behaviour, on the ordinary statutory test, and separation remains available in the usual way.
Emotional affairs, messages and everything short of intercourse are not adultery either. They may very well amount to behaviour. They are not this fact.
Two defences can defeat it. Section 1(3) provides that adultery will not establish irretrievable breakdown in two situations. The first is where the pursuer encouraged or connived at it, which Scots law still calls by the old name lenocinium. The second is where the pursuer condoned it by continuing to live with the defender knowing or believing that it had happened.
Trying again does not automatically condone it. Section 2(2) protects an attempted reconciliation. Adultery is not treated as condoned merely because the pursuer continued or resumed living with the defender, provided the pursuer has not lived with the defender at any time after the end of three months from that resumption. In plain terms, a short attempt at reconciliation does not by itself amount to condonation, provided you do not live together again beyond three months from the resumption. Whether adultery has been condoned remains a question of fact.
Adultery has to be proved, and it cannot use the simplified procedure. That combination is why very few Scottish divorces proceed on it. If you and your spouse have been apart for a year and there is nothing left to argue about, founding on adultery instead of separation converts a £156 postal application into a court action, adds cost, adds delay, and changes the outcome not at all. The financial result does not improve because of it. Scots law does not reward blame.
Behaviour
Section 1(2)(b) applies where the defender has at any time behaved, whether or not as a result of mental abnormality and whether such behaviour has been active or passive, in such a way that the pursuer cannot reasonably be expected to live with the defender.
Two things in that wording do a great deal of work. Whether or not as a result of mental abnormality means the behaviour need not be blameworthy; conduct arising from illness can still satisfy the test. Active or passive means that withdrawal, neglect and refusal can qualify as readily as anything done. The test itself is partly objective and partly personal: not whether the behaviour would be intolerable to anybody, but whether this pursuer can reasonably be expected to live with this defender.
There is no waiting period, and no consent is needed. Like adultery, it must be proved and it cannot use the simplified procedure, so it is used where waiting a year is not realistic rather than as a matter of preference.
One Year Apart, With Consent
Section 1(2)(d) applies where the parties have not lived together for a continuous period of one year after the date of the marriage and immediately before the action begins, and the defender consents to a decree being granted.
This is the fact most Scottish divorces use. It is the only fact that requires the other spouse to do anything, and consent is what buys the shorter period.
Consent is formal, and it can be withdrawn. Section 1(4) requires rules of court to ensure that a defender who consents has been given information explaining the consequences of consenting and the steps needed to indicate it, and to prescribe how consent, and any withdrawal of consent, is to be given. Consent is therefore not a conversation. It is a signed and witnessed document, and until decree is granted it can be taken back.
The consent form does more than agree to the divorce. On Form SPA the consenting spouse also states that they are not asking the court for a capital sum or a periodical allowance, and the form itself warns that divorce may cost them property rights, including the right to inherit from the applicant and, where relevant, a widow’s pension. That is a real legal consequence sitting in a free form. We take the whole form apart, section by section, on our page on the simplified divorce forms.
Two Years Apart, Without Consent
Section 1(2)(e) applies where the parties have not lived together for a continuous period of two years after the date of the marriage and immediately before the action begins. Your spouse does not need to agree and does not need to sign anything. Withholding consent does not stop the divorce, although a defender may still oppose the action on other grounds.
This is the fact to use where the other spouse will not engage, cannot be found, or refuses to consent out of spite. The price of not needing consent is the extra year.
When Did You Actually Separate?
The date the separation began decides when you can apply, and it is more often disputed than people expect.
Section 13 of the Act defines cohabitation for these purposes: the parties are held to live together only when they are in fact living together as man and wife. That is a question of substance, not address. A couple who share a house but have separate rooms, separate finances and no married life between them may well have separated while under the same roof. Equally, one spouse spending months working away has not separated at all.
So the date you moved out and the date you separated are not automatically the same date, and the one that counts is the one you can stand behind if the court asks. Fix it early, write it down, and be consistent about it. Changing your position later is the sort of thing that gets an application returned.
Trying Again: the Six-Month Rule
This is the provision almost nobody writes about, and it decides real dates.
Section 2(4) deals with what happens when a separated couple attempt a reconciliation. When the court works out whether the one year or the two years has run continuously, periods during which the parties lived together again are disregarded, provided they do not exceed six months in total. But, and this is the part that catches people, those periods do not count towards the required period either.
In other words a failed attempt to save the marriage does not reset your clock. It pauses it.
A worked example. Say you separated on 1st March 2025 and your spouse will consent, so you need one year. On 1st September 2025 you decide to try again and you live together for two months, separating for good on 1st November 2025. Those two months are well within six months, so the separation is still treated as continuous and you have not lost the six months you had already banked. But the two months are removed from the count. You need six months before the reconciliation and six months after it, so your year completes on 1st May 2026 rather than 1st March 2026.
Go past six months and the concession is lost. Section 2(4) only disregards periods totalling six months or less. Where they add up to more than that, they can no longer be left out of account, so the earlier separation will not be treated as continuing through them and in practice the period runs from the final separation. Seven months of trying again after a year apart puts you back to the beginning.
The practical point is that reconciliation is not penalised in Scotland, up to a point, and that point is six months. Anyone thinking about moving back in should know where the line sits before they cross it.
Desertion Is Not a Ground, and Has Not Been Since 2006
Section 1(2)(c) used to provide for desertion. It was repealed by the Family Law (Scotland) Act 2006 with effect from 4th May 2006. The same Act cut the separation periods from two years to one where there is consent, and from five years to two where there is not.
Any guide that lists five grounds for divorce in Scotland, or that offers desertion as a current route, is out of date.
England and Wales went the other way and abolished fault altogether in 2022. The two systems are compared in full on divorce in Scotland compared with England.
The Gender Recognition Ground
The second ground under section 1(1) is that an interim gender recognition certificate has been issued to either party after the date of the marriage. It stands on its own; there is no need to prove irretrievable breakdown alongside it.
Section 1(3B) contains a catch. The ground is not available once a full gender recognition certificate has been issued, except where the full certificate was issued by the sheriff under section 4E of the Gender Recognition Act 2004. Timing therefore matters, and Form SPC exists for this route within the simplified procedure.
The Standard of Proof
Section 1(6) provides that in an action of divorce the standard of proof required to establish the ground is the balance of probability. It is the ordinary civil standard, not the criminal one. Adultery in particular was once thought to need something stronger; it does not.
Postponing Decree Where There Is a Religious Impediment
Section 3A allows a party to ask the court to postpone granting decree where they are prevented from entering a religious marriage because of a requirement of their religion, and the other spouse can act to remove that impediment. The court may postpone where it is just and reasonable to do so, and may accept a certificate from a religious body confirming that the other party has done what is needed.
It applies to marriages solemnised by a celebrant of a prescribed religious body. It is a narrow provision, but for the people it affects it is the whole point, and it is worth raising at the start rather than after decree.
Which Fact Puts You on Which Route
The fact you rely on is not just a legal label. It decides the procedure, and the procedure decides the cost.
| Fact relied on | Procedure | Form | Court fee | Our fixed fee |
|---|---|---|---|---|
| One year apart, with consent | Simplified, if no child of the marriage under sixteen and nothing financial outstanding | SPA | £156 | £550 all in |
| Two years apart, without consent | Simplified, on the same conditions | SPB | £156 | £550 all in |
| Interim gender recognition certificate | Simplified, on the same conditions | SPC | £156 | £550 all in |
| Adultery | Ordinary action only | Initial writ | £191 plus £82 on affidavits | £1,550 all in if undefended |
| Behaviour | Ordinary action only | Initial writ | £191 plus £82 on affidavits | £1,550 all in if undefended |
| Any fact, where there is a child under sixteen or anything financial outstanding | Ordinary action only | Initial writ | £191 plus £82 on affidavits | £1,550 all in if undefended |
Court fees are those in force from 1st April 2026 under the Sheriff Court Fees Order 2026. The full breakdown, the increases already written into law for April 2027 and the rules on exemption are on our page on court fees and fee exemption, and the whole cost picture is on what a divorce costs in Scotland.
Choosing Between the Facts
Where a separation fact is available, use it. Adultery and behaviour give you no financial advantage, no faster route and no better outcome for the children. What they give you is a court action instead of a postal application, an opportunity for your spouse to defend, and a set of allegations in writing that everybody has to live with afterwards. Conduct is rarely relevant to the financial outcome under the Family Law (Scotland) Act 1985, though it is not invariably irrelevant.
Where a separation fact is not yet available and waiting is not realistic, behaviour is usually the sensible choice, and it is a good deal broader than most people expect. That is a conversation to have before anything is drafted rather than after.
The fact does not decide the money. Financial provision on divorce is governed by the Family Law (Scotland) Act 1985 and its principles of fair sharing. Conduct is largely irrelevant to it. The single thing that does decide the money is whether the claim is made in the divorce action at all, because once decree is granted a capital sum can no longer ordinarily be claimed, and only a narrow power to award a periodical allowance survives under section 13 of the Family Law (Scotland) Act 1985. See settling finances before you divorce.
If you are working out where you stand overall, start with how to get a divorce in Scotland, which takes the decisions in the order they have to be made.
Frequently Asked Questions
How many grounds for divorce are there in Scotland?
Two. Under section 1(1) of the Divorce (Scotland) Act 1976 the court may grant divorce where the marriage has broken down irretrievably, or where an interim gender recognition certificate has been issued to either party after the marriage. Irretrievable breakdown is then established by one of four facts: adultery, behaviour, one year apart with consent, or two years apart without.
Is desertion still a ground for divorce in Scotland?
No. Section 1(2)(c) provided for desertion and was repealed by the Family Law (Scotland) Act 2006 with effect from 4th May 2006. Any guide still listing it is two decades out of date.
What counts as adultery in Scotland?
Voluntary sexual intercourse between a man and a woman, one of whom is married to someone else. Anything short of intercourse is not adultery, and neither is a relationship between two people of the same sex. Section 1(3A) of the 1976 Act confirms that the meaning is the same in a same-sex marriage, so same-sex infidelity cannot be founded on as adultery. It may amount to behaviour, and separation remains available in the usual way.
Does it help my financial claim to divorce on adultery?
No. Financial provision on divorce is decided under the Family Law (Scotland) Act 1985 by reference to fair sharing of matrimonial property, and conduct is largely irrelevant to it. Founding on adultery adds cost and closes off the simplified procedure without improving the outcome.
What happens to the one year if we get back together and it does not work?
Under section 2(4), periods of living together again totalling no more than six months are disregarded, so the separation is still treated as continuous. However those periods do not count towards the one or two years. A two month reconciliation therefore pushes your date back by two months rather than resetting it. Where the periods together exceed six months in total the concession is lost, they can no longer be left out of account, and in practice the period runs from the final separation.
Can my spouse withdraw consent after signing?
Yes. Section 1(4) requires rules of court covering both the giving and the withdrawal of consent, and consent can be withdrawn at any point before decree is granted. If that happens, the choice is to wait until two years have passed and proceed without consent, or to raise an ordinary action on another fact.
Do we have to live at different addresses to be separated?
Not necessarily. Section 13 provides that the parties are held to live together only when they are in fact living together as man and wife. A couple who share a house but have ended the marriage in every practical sense may well have separated. It is a question of substance, and it needs to be capable of being stood behind.
Which fact should I use if I want the cheapest divorce?
A separation fact, if one is available to you. One year apart with consent and two years apart without are the facts that open the simplified procedure, along with the interim gender recognition certificate ground, which is £156 in court fees if you do it yourself and £550 all in if we do it. Adultery and behaviour require an ordinary action.
This page was written and reviewed by Brian Rooney, Managing Partner of Rooney Family Law, accredited by the Law Society of Scotland as a specialist in family law. Statutory references are to the Divorce (Scotland) Act 1976 as currently in force, the Family Law (Scotland) Act 2006, the Marriage and Civil Partnership (Scotland) Act 2014 and the Family Law (Scotland) Act 1985. Court fees are stated as at 1st April 2026 under the Sheriff Court Fees Order 2026 (SSI 2026/74). This page is general information about Scots law and is not legal advice on your circumstances.
Last reviewed: 8th September 2026.
Not Sure Which Fact Applies?
Choosing the fact is the decision that sets everything else, and it is worth five minutes of somebody’s time rather than a guess. If a separation fact is open to you, a simplified divorce is £550 all in, including the court fee. If it has to be an ordinary action, an undefended divorce is £1,550 all in.
